Citation Nr: 0822428
Decision Date: 07/09/08 Archive Date: 07/14/08
DOCKET NO. 05-11 596 ) DATE
)
MERGED APPEAL )
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral pes
planus.
2. Entitlement to service connection for ingrown toenails.
3. Entitlement to an initial compensable evaluation for
bilateral hearing loss.
ATTORNEY FOR THE BOARD
Scott Shoreman, Associate Counsel
INTRODUCTION
The veteran had active service from August 1963 to July 1965.
This matter comes before the Board of Veterans' Appeals
(Board) from January 2005 and October 2005 rating decisions
by the above Department of Veterans Affairs (VA) Regional
Office (RO).
In an October 2007 letter the veteran alleged that the
effective date for his bilateral hearing loss should be July
28, 1965. That issue is referred to the RO for appropriate
action.
FINDINGS OF FACT
1. The competent and probative medical evidence
preponderates against a finding that the veteran's bilateral
pes planus is due to any incident or event in active service.
2. The competent and probative medical evidence
preponderates against a finding that the veteran's ingrown
toenails are due to any incident or event in active service.
3. Currently, audiometric testing shows an average 53.75
decibel loss, with a speech recognition score of 90 percent,
in the right ear (level II) and an average 52.5 decibel loss,
with a speech recognition score of 86 percent, in the left
ear
(level II).
4. At no time has the veteran's hearing loss been shown to
produce an exceptional or unusual disability picture, with
such factors as marked interference with employment or
frequent periods of hospitalization, as to render impractical
the application of the regular schedular standards.
CONCLUSIONS OF LAW
1. Bilateral pes planus was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.303, 3.304 (2007).
2. Ingrown toenails were not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303,
3.304.
3. The criteria for an initial compensable evaluation for
bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§
4.85, 4.86 (2007), Diagnostic Code (DC) 6100 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at 38
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. 38 C.F.R. §
3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30,
2008). This notice must be provided prior to an initial
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
If complete notice is not provided until after the initial
adjudication, such a timing error can be cured by subsequent
legally adequate VCAA notice, followed by readjudication of
the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC). Moreover, where there is an uncured
timing defect in the notice, subsequent action by the RO
which provides the claimant a meaningful opportunity to
participate in the processing of the claim can prevent any
such defect from being prejudicial. Mayfield v. Nicholson,
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Court of Appeals for the Federal Circuit has held
that, if a claimant can demonstrate error in VCAA notice,
such error should be presumed to be prejudicial. VA then
bears the burden of rebutting the presumption, by showing
that the essential fairness of the adjudication has not been
affected because, for example, actual knowledge by the
claimant cured the notice defect, a reasonable person would
have understood what was needed, or the benefits sought
cannot be granted as a matter of law. Sanders v. Nicholson,
487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S.
March 21, 2008) (No. 07-1209).
In October 2004 and June 2005 the RO sent the veteran letters
informing him of the types of evidence needed to substantiate
his claim and its duty to assist him in substantiating his
claim under the VCAA. The letters informed the veteran that
VA would assist him in obtaining evidence necessary to
support his claim, such as medical records, employment
records, or records from other Federal agencies. He was
advised that it is his responsibility to provide or identify,
and furnish authorization where necessary for the RO to
obtain, any supportive evidence pertinent to his claim. See
38 C.F.R. § 3.159(b)(1).
The Board finds that the content of the letters provided to
the veteran complied with the requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to
notify and assist. In addition, the January 2005 and October
2005 rating decisions, March 2005, June 2005, and February
2006 SOCs and June 2006 and January 2007 SSOCs explained the
basis for the RO's action, and the SOCs and SSOCs provided
him with additional 60-day periods to submit more evidence.
It appears that all obtainable evidence identified by the
veteran relative to his claim has been obtained and
associated with the claims file, and that he has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for a fair
disposition of this appeal. It is therefore the Board's
conclusion that the veteran has been provided with every
opportunity to submit evidence and argument in support of his
claims, and to respond to VA notices.
Moreover, the claimant has not demonstrated any error in VCAA
notice, and therefore the presumption of prejudicial error as
to such notice does not arise in this case. See Sanders v.
Nicholson, supra.
In addition to the foregoing harmless-error analysis, we note
that the decision of the Court in Dingess v. Nicholson, 19
Vet. App. 473 (2006) requires more extensive notice in claims
for compensation, e.g., as to potential downstream issues
such as disability rating and effective date. This
requirement was fulfilled in a March 2006 letter which VA
sent to the veteran.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertinent to his claim under the VCAA.
Therefore no useful purpose would be served in remanding this
matter for yet more development. Such a remand would result
in unnecessarily imposing additional burdens on VA, with no
additional benefits flowing to the veteran. The Court of
Appeals for Veteran Claims has held that such remands are to
be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a). When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Relevant Law, Factual Background, and Analysis
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303(a).
Where there is a chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. § 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes. This rule does not mean
that any manifestation in service will permit service
connection. To show chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." 38 C.F.R. § 3.303(b). When the disease
identity is established, there is no requirement of
evidentiary showing of continuity. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b).
Service connection may be granted for disease that is
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R.
§ 3.303(d).
The U.S. Court of Appeals for Veterans Claims has held that,
in order to prevail on the issue of service connection, there
must be medical evidence of a (1) current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp.
2007); 38 C.F.R. Part 4 (2007). When a question arises as to
which of two evaluations shall be assigned, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons used to
support the conclusion. Schafrath v. Derwinski, 1 Vet. App.
589 (1991). These regulations include, but are not limited
to, 38 C.F.R. § 4.1, which requires that each disability be
viewed in relation to its history and that there be an
emphasis placed upon the limitation of activity imposed by
the disabling condition, and 38 C.F.R. § 4.2, which requires
that medical reports be interpreted in light of the whole
recorded history, and that each disability must be considered
from the point of view of the veteran working or seeking
work. These requirements for the evaluation of the complete
medical history of the claimant's condition operate to
protect claimants against adverse decision based upon a
single, incomplete, or inaccurate report, and to enable VA to
make a more precise evaluation of the disability level and
any changes in the condition.
In general, when an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, when the current appeal arose from the
initially assigned rating, consideration must be given as to
whether staged ratings should be assigned to reflect
entitlement to a higher rating at any point during the
pendency of the claim. Fenderson v. West, 12 Vet. App. 119
(1999). Moreover, staged ratings are appropriate in any
increased-rating claim in which distinct time periods with
different ratable symptoms can be identified. Hart v.
Mansfield, 21 Vet. App. 505 (2007).
A. Service Connection for Bilateral Pes Planus
The veteran's service treatment records (STRs) do not show
any treatment for bilateral pes planus. On a July 1965
Report of Medical History he indicated that he did not have
any foot problems. His feet were found to be normal at his
discharge examination.
The veteran underwent a VA examination for his feet in May
2006 at which he was diagnosed with bilateral pes planus. He
estimated that he was able to stand for 15 to 30 minutes and
walk for a quarter of a mile, and he had calluses on the
soles of his feet. His gait was found to be normal. The VA
examiner opined that the veteran does not have a current foot
condition related to his service.
We recognize the sincerity of the arguments advanced by the
veteran that his bilateral pes planus is service connected.
However, the resolution of issues that involve medical
knowledge, such as the diagnosis of a disability and the
determination of medical etiology, require professional
evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). It is true that the veteran's lay statements may be
competent to support a claim for service connection by
supporting the occurrence of lay-observable events or the
presence of disability or symptoms of disability subject to
lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R.
§§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as
potentially competent to support presence of disability even
where not corroborated by contemporaneous medical evidence).
However, although pes planus may certainly be observable by a
layperson, the condition requires specialized training for a
determination as to diagnosis and causation, and is therefore
not susceptible of lay opinions on etiology.
Since the preponderance of the evidence is against the
veteran's claim of entitlement to service connection for
bilateral pes planus, the benefit-of-the-doubt doctrine is
inapplicable, and the claim must be denied. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.
B. Service Connection for Ingrown Toenails
The STRs show that in May 1965 the veteran was treated for an
ingrown toenail on his right great toe. One-third of the
nail was removed, and the procedure was repeated in June
1965. As discussed above, in July 1965 the veteran indicated
that he did not have any foot trouble at that time, and his
feet were found to be normal at his July 1965 discharge
examination.
At his May 2006 VA examination, the veteran said that the
problems with his ingrown nails began between March 1965 and
July 1965, when his feet were stomped on while he was in the
stockade. This resulted in the toenails on his great toes
being "cut out." The veteran reported having his nails
"cut out" again in Salt Lake City in 1967 and in California
in 1969. He said that he currently uses his pocket knife 6 -
8 times a year to "dig it out" when his toenails hurt. The
examiner did not note any precipitating factors or specific
limitations during flare-ups. The veteran had tenderness and
pain in both great toes. The examiner felt that the veteran
had mild limitation in grooming and no other limitations in
activities of daily living as a result of his foot
impairments. He opined that the veteran had no chronic
medical condition concerning the residuals of his ingrown
toenails from service, and that the veteran has no current
foot condition related to service.
As above, the Board recognizes the sincerity of the arguments
advanced by the veteran that his ingrown toenails are service
connected. However, such a determination as to a
relationship to service requires professional evidence. See
Espiritu, supra. The veteran's lay statements may be
competent to support his claim by identifying events he has
observed or experienced, under 38 U.S.C.A. § 1153(a);
38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau, and Buchanan,
supra. However, his personal opinion is overcome by that of
the medical opinion rendered by the examiner, above.
The preponderance of the evidence is against the veteran's
claim of entitlement to service connection for ingrown
toenails, the benefit-of-the-doubt doctrine is inapplicable,
and the claim must be denied.
C. Increased Initial Evaluation for Bilateral Hearing Loss
The veteran's hearing loss has been evaluated under 38 C.F.R.
§ 4.85, DC 6100. This diagnostic code sets out the criteria
for evaluating hearing impairment using pure tone threshold
averages and speech discrimination scores. Numeric
designations are assigned based upon a mechanical use of
tables found in 38 C.F.R. § 4.85; there is no room for
subjective interpretation. See Acevedo-Escobar v. West, 12
Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App.
345, 349 (1992).
Audiometric results are matched against Table VI to find the
numeric designation, then the designations are matched with
Table VII to find the percentage evaluation to be assigned
for the hearing impairment. To evaluate the degree of
disability for service-connected hearing loss, the Rating
Schedule establishes 11 auditory acuity levels, designated
from level I for essentially normal acuity, through level XI
for profound deafness. 38 C.F.R. § 4.85. When impaired
hearing is service connected in one ear only, the non-
service-connected ear will be assigned a designation of level
I from Table VII. 38 C.F.R. § 4.85(f).
The provisions of section 4.86 address exceptional patterns
of hearing loss which, are defined as when each of the pure
tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is
55 decibels or more, or when the pure tone threshold is 30
decibels or less at 1000 Hz and 70 decibels or more at 2000
Hz. 38 C.F.R. § 4.86 (2007).
On the VA audiological evaluation in December 2004, pure tone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
15
25
80
80
LEFT
15
30
85
80
Speech audiometry revealed speech recognition ability of 88
percent in the right ear and of 84 percent in the left ear.
The results of the December 2004 audiogram show an average
pure tone threshold of 50 decibels in the right ear, with
speech discrimination ability of 88 percent, and 52 decibels
in the left ear, with speech discrimination ability of 84
percent. Table VI indicates numeric designation of II for
the right ear and II for the left. The point of intersection
on Table VII reflects that the level of hearing loss is
consistent with a noncompensable evaluation. Exceptional
patterns of hearing impairment were not indicated.
On the VA audiological evaluation in March 2006, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
20
85
90
LEFT
25
15
30
85
80
Speech audiometry revealed speech recognition ability of 90
percent in the right ear and of 86 percent in the left ear.
The results of the March 2006 audiogram show an average pure
tone threshold of 53.75 decibels in the right ear, with
speech discrimination ability of 90 percent, and 52.5
decibels in the left ear, with speech discrimination ability
of 86 percent. Table VI indicates numeric designation of II
for the right ear and II for the left. The point of
intersection on Table VII reflects that the level of hearing
loss is consistent with a noncompensable evaluation.
Exceptional patterns of hearing impairment are not indicated
in the report.
The fact that the veteran's hearing acuity is less than
optimal does not by itself establish entitlement to a higher
disability rating. To the contrary, it is clear from the
Rating Schedule that a higher rating can be awarded only when
loss of hearing has reached a specified measurable level. We
do sympathize with the veteran's complaints, but that higher
level of disability has not been demonstrated in the present
case.
Finally, in light of the holding in Fenderson, supra, the
Board has considered whether the veteran is entitled to a
"staged" rating for his service-connected bilateral hearing
loss disability, as the Court indicated can be done in this
type of case. Based upon the record, we find that at no time
since September 15, 2004, the date of the veteran's claim of
service connection for bilateral hearing loss, has the
disability on appeal been more disabling than as currently
rated under the present decision of the Board.
The preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102.
ORDER
Service connection for bilateral pes planus is denied.
Service connection for ingrown toe nails is denied.
Entitlement to an initial compensable evaluation for
bilateral hearing loss is denied.
_______________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs